No ‘Deus Ex Machina’ on State Authorization

Ancient Greek playwrights would sometimes write themselves into a corner. The intricate plot, which was so carefully developed through the initial acts, did not lend itself to an easy resolution in the finale.

One answer was to let the gods and goddesses resolve the outcome. Actors playing deities would be lowered by cranes onto the stage to intervene in the action and untangle the unseemly mess created by us humans. The term ‘deus ex machina’ (gods out of the machine) describes the plot device of using contrived or unexpected events to resolve the conflict in a play.

In more recent times, the television courtroom drama Perry Mason television series was famous for members of the gallery suddenly confessing to a crime much to the relief of Mason’s unjustly accused defendant. The Martians invading the Earth in H.G. Wells’ War of the Worlds suddenly fall victim to a common bacteria to which they have no immunity. The aliens die, the Earth is saved, and all rejoice.

There is no ‘deus ex machina’ for the state authorization regulations.

Regarding state authorization regulations, I have heard people say that they are ‘waiting for clarity,’ ‘this will all blow over,’ ‘students came to us so we don’t have to worry about it,’ ‘certainly we must be exempt,’ and ‘the federal regulation was vacated so we don’t have to do anything.’ These sentiments were reflected in the UPCEA/WCET survey on what colleges are doing on state authorization. Many colleges are still waiting to act.

The federal state authorization regulation will probably return soon.It is true that federal regulation was vacated, but it was only on procedural grounds. The U.S. Department of Education (USDOE) recently filed an appeal seeking to reinstate the distance education regulation. In presentations by and conversations with USDOE personnel, they feel that they have a good chance to win an appeal. This will take several months to resolve as it works its way through the appeal process. The appeal might fail. Even so, since the regulation was vacated on the grounds that the USDOE did not follow its procedures, they could reissue the regulation as part of a future proposed rulemaking process and overcome the court’s objections.

States still expect your institution to comply with their state laws.State regulations predate the federal regulation and are still in force. You are expected to check whether you need to apply for authorization or not. If your institution needs authorization, you were supposed to have received it prior to enrolling the first student and, often, prior to any marketing in that state. In many states, if an institution is offering courses at a distance and is doing nothing else in that state, then you do not need to seek approval or may be exempt. But some states will require you to apply.

Federal legislation will provide little reliefThere is also hope being pinned on federal regulations repealing this regulation. In a previous post, we gave the opinion that the legislation will probably not pass, if it passes it will probably be vetoed, and if it is signed by the President that it will have little impact. The state regulations are still in place and this legislation does not change that fact.

No reason to waitIn re-examining the quotes that I gave above, in reverse order:

Vacating the federal rule does not absolve you from following state law.

You are exempt only if the state says you are exempt.

Even if the student came to you, the state laws and regulations where that student is taking the bulk of the instruction still apply.

I don’t see how it will blow over.

Stop waiting for clarity. Sometimes it feels like I’m talking to the math student who is waiting to learn Algebra by osmosis. Math ability comes from studying math, state authorization clarity comes only from studying the state regulations.

What should we be doing?We completely understand that this is a pain and expensive and confusing and a big time suck. If you have not started, our advice is to do what you can, including:

Run the numbers so that you know where you are enrolling students.

Determine which states are at the top of your institution’s list strategically.

Convene a meeting with your institution’s leadership (president, provost, attorney) and marketing director so that they can be informed and prepared to make tough decisions. Involving the marketing director is crucial so that marketing efforts do not trigger a need for authorization in states where you are not approved to operate. This becomes more problematic at larger institutions with multiple marketing or distance education efforts. A coordinated response is key.

Begin learning the regulations in that state.

Contact the regulator in that state with specific information about what you are doing in the state and specific questions about their regulations. Build a relationship. Please do not send a blanket letter to them saying “tell me what to do.”

Determine next steps based upon what you learn.

Also, you will be hearing more about reciprocity agreements in the coming months, but relief from reciprocity is still probably a couple years away. The exception to this is the Southern states, which are building on an existing agreement. When the time comes, be sure that your state supports reciprocity agreements. The more states that sign-on the easier authorization will be on all of us, which is good for us and good for students.

2 Comments

Thank you for the nice words Mike…although I fear that the Perry Mason and Lone Ranger references may date us a bit. :-)

I just heard from a person who has the responsibility for online programs in a college within a large Research 1 state university. The institutional lawyers decided that they will not seek authorization. They determined that it’s cheaper to be sued than comply. I find it a bit worrisome for a state university to advocate ignoring the state laws from another state. It is not the first time I’ve heard this.

Additionally, lawsuits might not be the biggest damage that a regulator could visit on a university. If you are blatantly out of compliance, notifying the press in the regulator’s state will kill your market there and open you up to student lawsuits. If the regulator knows what he’s doing, he’d also notify the press in the university’s home town and state capitol. I’m sure the president of the university will relish that call from the governor and legislative leaders.

To add another ancient TV reference: “Lucy, you got some ‘splainin’ to do!”

As usual, Russ has nailed the issue. The “problem” was never the Department of Education in the first place: what ED accomplished was to ring a very loud bell about EXISTING state authorization. When the states started receiving considerable quantities of inquiries about institutional activities within their borders, some that were somnolent woke up. And all the sound and fury has resurrected the idea, now a quarter-century old, of common standards and/or reciprocity to reduce burden.

ED’s now-stayed regulation reminds me of a quote by one great television icon to another: “Our work is done here, Tonto.”